CALCRIM No. 1400. Active Participation in Criminal Street Gang (Pen. Code, § 186.22(a))

Judicial Council of California Criminal Jury Instructions (2022 edition)

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1400.Active Participation in Criminal Street Gang (Pen. Code,
§ 186.22(a))
The defendant is charged [in Count ] with participating in a
criminal street gang [in violation of Penal Code section 186.22(a)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant actively participated in a criminal street gang;
2. When the defendant participated in the gang, (he/she) knew that
members of the gang engage in or have engaged in a pattern of
criminal gang activity;
AND
3. The defendant willfully assisted, furthered, or promoted felonious
criminal conduct by members of the gang either by:
a. directly and actively committing a felony offense;
OR
b. aiding and abetting a felony offense.
At least two members of that same gang must have participated in
committing the felony offense. The defendant may count as one of those
members if you find that the defendant was a member of the gang.
Active participation means involvement with a criminal street gang in a
way that is more than passive or in name only.
[The People do not have to prove that the defendant devoted all or a
substantial part of (his/her) time or efforts to the gang, or that (he/she)
was an actual member of the gang.]
<If criminal street gang has already been defined.>
[A criminal street gang is defined in another instruction to which you
should refer.]
<If criminal street gang has not already been defined in another
instruction.>
[A criminal street gang is an ongoing organized association or group of
three or more persons, whether formal or informal:
1. That has a common name or common identifying sign or symbol;
2. That has, as one or more of its primary activities, the commission
of <insert one or more crimes listed in Pen. Code,
§ 186.22(e)(1)>;
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AND
3. Whose members collectively engage in or have engaged in a
pattern of criminal gang activity.
In order to qualify as a primary activity, the crime must be one of the
group’s chief or principal activities rather than an occasional act
committed by one or more persons who happen to be members of the
group.]
<Give this paragraph only when the conduct that establishes the pattern of
criminal gang activity, i.e., predicate offenses, has not resulted in a
conviction or sustained juvenile petition.>
[To decide whether the ongoing organized association or group has, as
one of its primary activities, the commission of <insert
felony or felonies from Pen. Code, § 186.22(e)(1)> please refer to the
separate instructions that I (will give/have given) you on (that/those)
crime[s].]
Apattern of criminal gang activity, as used here, means:
1. [The] (commission of[,]/ [or] attempted commission of[,]/ [or]
conspiracy to commit[,]/ [or] solicitation to commit[,]/ [or]
conviction of[,]/ [or] (Having/having) a juvenile petition sustained
for commission of) (any combination of two or more of the
following crimes/[,] [or] two or more occurrences of [one or more
of the following crimes]:) <insert one or more crimes
listed in Pen. Code, § 186.22(e)(1)>;
2. At least one of those crimes was committed after September 26,
1988;
3. The most recent crime occurred within three years of one of the
earlier crimes and within three years of the date of the charged
offense;
4. The crimes were committed on separate occasions or were
personally committed by two or more members;
5. The crimes commonly benefitted a criminal street gang;
AND
6. The common benefit from the crimes was more than reputational.
Examples of a common benefit that are more than reputational may
include, but are not limited to, financial gain or motivation, retaliation,
targeting a perceived or actual gang rival, or intimidation or silencing of
a potential current or previous witness or informant.
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<Give this paragraph only when the conduct that establishes the pattern of
criminal gang activity, i.e., predicate offenses, has not resulted in a
conviction or sustained juvenile petition.>
[To decide whether a member of the gang [or the defendant] committed
<insert felony or felonies from Pen. Code, § 186.22(e)(1)>
please refer to the separate instructions that I (will give/have given) you
on (that/those) crime[s].]
The People need not prove that every perpetrator involved in the pattern
of criminal gang activity, if any, was a member of the alleged criminal
street gang at the time when such activity was taking place.
[If you find the defendant guilty of a crime in this case, you may
consider that crime in deciding whether one of the group’s primary
activities was commission of that crime.]
[You may not consider evidence of the charged offense[s] in deciding
whether a pattern of criminal gang activity has been established.]
[You may not find that there was a pattern of criminal gang activity
unless all of you agree that two or more crimes that satisfy these
requirements were committed, but you do not have to all agree on which
crimes were committed.]
As the term is used here, a willful act is one done willingly or on
purpose.
Felonious criminal conduct means committing or attempting to commit
[any of] the following crime[s]: <insert felony or felonies by
gang members that the defendant is alleged to have furthered, assisted,
promoted or directly committed>.
[To decide whether a member of the gang [or the defendant] committed
<insert felony or felonies listed immediately above>, please
refer to the separate instructions that I (will give/have given) you on
(that/those) crime[s].]
To prove that the defendant aided and abetted felonious criminal
conduct by a member of the gang, the People must prove that:
1. A member of the gang committed the crime;
2. The defendant knew that the gang member intended to commit
the crime;
3. Before or during the commission of the crime, the defendant
intended to aid and abet the gang member in committing the
crime;
AND
4. The defendant’s words or conduct did in fact aid and abet the
commission of the crime.
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Someone aids and abets a crime if he or she knows of the perpetrator’s
unlawful purpose and he or she specifically intends to, and does in fact,
aid, facilitate, promote, encourage, or instigate the perpetrators
commission of that crime.
[If all of these requirements are proved, the defendant does not need to
actually have been present when the crime was committed to be guilty as
an aider and abettor.]
[If you conclude that defendant was present at the scene of the crime or
failed to prevent the crime, you may consider that fact in determining
whether the defendant was an aider and abettor. However, the fact that a
person is present at the scene of a crime or fails to prevent the crime
does not, by itself, make him or her an aider and abettor.]
[A person who aids and abets a crime is not guilty of that crime if he or
she withdraws before the crime is committed. To withdraw, a person
must do two things:
1. He or she must notify everyone else he or she knows is involved
in the commission of the crime that he or she is no longer
participating. The notification must be made early enough to
prevent the commission of the crime;
AND
2. He or she must do everything reasonably within his or her power
to prevent the crime from being committed. He or she does not
have to actually prevent the crime.
The People have the burden of proving beyond a reasonable doubt that
the defendant did not withdraw. If the People have not met this burden,
you may not find the defendant guilty under an aiding and abetting
theory.]
New January 2006; Revised August 2006, June 2007, December 2008, August 2012,
February 2013, August 2013, February 2014, August 2014, February 2016, March
2022
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
In the definition of “felonious criminal conduct,” insert the felony or felonies the
defendant allegedly aided and abetted. (See People v. Green (1991) 227 Cal.App.3d
692, 704 [278 Cal.Rptr. 140] [abrogated on other grounds by People v. Castenada
(2000) 23 Cal.4th 743, 747-748 [97 Cal.Rptr.2d 906, 3 P.3d 278].) Note that a
defendant’s misdemeanor conduct in the charged case, which is elevated to a felony
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by operation of Penal Code section 186.22(a), is not sufficient to satisfy the
felonious criminal conduct requirement of an active gang participation offense
charged under subdivision (a) of section 186.22 or of active gang participation
charged as an element of felony firearm charges under section 12025(b)(3) or
12031(a)(2)(C). People v. Lamas (2007) 42 Cal.4th 516, 524 [67 Cal.Rptr.3d 179,
169 P.3d 102].
The court should also give the appropriate instructions defining the elements of
crimes inserted in the list of alleged “primary activities” or inserted in the definition
of “pattern of criminal gang activity” that have not been established by prior
convictions or sustained juvenile petitions. The court should also give the
appropriate instructions defining the elements of all crimes inserted in the definition
of “felonious criminal conduct.”
On request, give the bracketed paragraph that begins with “The People do not need
to prove that the defendant devoted all or a substantial part of . . . .” (See Pen.
Code, § 186.22(j).)
On request, give the bracketed paragraph that begins with “If you find the defendant
guilty of a crime in this case.” (People v. Sengpadychith (2001) 26 Cal.4th 316,
322-323 [109 Cal.Rptr.2d 851, 27 P.3d 739]; People v. Duran (2002) 97
Cal.App.4th 1448, 1464-1465 [119 Cal.Rptr.2d 272].)
On request, give the bracketed paragraph that begins with “You may not find that
there was a pattern of criminal gang activity.” (People v. Funes (1994) 23
Cal.App.4th 1506, 1527-1528 [28 Cal.Rptr.2d 758]; see also Related Issues section
below on Unanimity.)
On request, the court must give a limiting instruction on the gang evidence. (People
v. Hernandez (2004) 33 Cal.4th 1040, 1051-1052 [16 Cal.Rptr.3d 880, 94 P.3d
1080].) If requested, give CALCRIM No. 1403, Limited Purpose of Evidence of
Gang Activity.
If the defendant is charged with other counts that do not require gang evidence as
an element, the court must try the Penal Code section 186.22(a) count separately.
(Pen. Code, § 1109(b).)
Defenses - Instructional Duty
If there is evidence that the defendant was merely present at the scene or only had
knowledge that a crime was being committed, the court has a sua sponte duty to
give the bracketed paragraph that begins with “If you conclude that defendant was
present.” (People v. Boyd (1990) 222 Cal.App.3d 541, 557 fn. 14 [271 Cal.Rptr.
738]; In re Michael T. (1978) 84 Cal.App.3d 907, 911 [149 Cal.Rptr. 87].)
If there is sufficient evidence that the defendant withdrew, the court has a sua
sponte duty to give the final bracketed section on the defense of withdrawal.
Related Instructions
This instruction should be used when a defendant is charged with a violation of
Penal Code section 186.22(a) as a substantive offense. If the defendant is charged
with an enhancement under 186.22(b), use CALCRIM No. 1401, Felony or
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Misdemeanor Committed for Benefit of Criminal Street Gang (Pen. Code,
§ 186.22(b)(1) (Felony) and § 186.22(d) (Felony or Misdemeanor)).
For additional instructions relating to liability as an aider and abettor, see the Aiding
and Abetting series (CALCRIM No. 400 et seq.).
AUTHORITY
Elements. Pen. Code, § 186.22(a).
Active Participation Defined. People v. Castenada (2000) 23 Cal.4th 743, 747
[97 Cal.Rptr.2d 906, 3 P.3d 278].
Criminal Street Gang Defined. Pen. Code, § 186.22(f).
Pattern of Criminal Gang Activity Defined. Pen. Code, § 186.22(e), (g).
Examples of Common Benefit. Pen. Code, § 186.22(g).
Willful Defined. Pen. Code, § 7(1).
Applies to Both Perpetrator and Aider and Abettor. People v. Ngoun (2001) 88
Cal.App.4th 432, 436 [105 Cal.Rptr.2d 837]; People v. Castenada (2000) 23
Cal.4th 743, 749-750 [97 Cal.Rptr.2d 906, 3 P.3d 278].
Felonious Criminal Conduct Defined. People v. Albillar (2010) 51 Cal.4th 47,
54-59 [119 Cal.Rptr.3d 415, 244 P.3d 1062]; People v. Green (1991) 227
Cal.App.3d 692, 704 [278 Cal.Rptr. 140] [abrogated on other grounds by People
v. Castenada (2000) 23 Cal.4th 743, 747-748 [97 Cal.Rptr.2d 906, 3 P.3d 278].
Separate Intent From Underlying Felony. People v. Herrera (1999) 70
Cal.App.4th 1456, 1467-1468 [83 Cal.Rptr.2d 307].
Willfully Assisted, Furthered, or Promoted Felonious Criminal Conduct. People
v. Rodriguez (2012) 55 Cal.4th 1125, 1132-1138 [150 Cal.Rptr.3d 533, 290 P.3d
1143].
Temporal Connection Between Active Participation and Felonious Criminal
Conduct. People v. Garcia (2007) 153 Cal.App.4th 1499, 1509 [64 Cal.Rptr.3d
104].
Crimes Committed After Charged Offense Not Predicates. People v. Duran,
supra, 97 Cal.App.4th at p. 1458.
Conspiracy to Commit This Crime. People v. Johnson (2013) 57 Cal.4th 250,
255, 266-267 [159 Cal.Rptr.3d 70, 303 P.3d 379].
Proof of Sufficient Connection Among Gang “Subsets” and Umbrella Gang
Required. People v. Prunty (2015) 62 Cal. 4th 59, 81-85 [192 Cal.Rptr.3d 309,
355 P.3d 480].
COMMENTARY
The jury may not consider the circumstances of the charged crime to establish a
pattern of criminal activity. (Pen. Code, § 186.22(e)(2).) A “pattern of criminal gang
activity” requires two or more “predicate offenses” during a statutory time period.
Another offense committed on the same occasion by a fellow gang member may
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serve as a predicate offense. (People v. Loeun (1997) 17 Cal.4th 1, 9-10 [69
Cal.Rptr.2d 776, 947 P.2d 1313]; see also In re Nathaniel C. (1991) 228 Cal.App.3d
990, 1002-1003 [279 Cal.Rptr. 236] [two incidents each with single perpetrator, or
single incident with multiple participants committing one or more specified offenses,
are sufficient]; People v. Ortiz (1997) 57 Cal.App.4th 480, 484 [67 Cal.Rptr.2d
126].) However, convictions of a perpetrator and an aider and abettor for a single
crime establish only one predicate offense (People v. Zermeno (1999) 21 Cal.4th
927, 931-932 [89 Cal.Rptr.2d 863, 986 P.2d 196]), and “[c]rimes occurring after the
charged offense cannot serve as predicate offenses to prove a pattern of criminal
gang activity.” (People v. Duran, (2002) 97 Cal.App.4th 1448, 1458 [119
Cal.Rptr.2d 272] [original italics].) The “felonious criminal conduct” need not be
gang-related. (People v. Albillar (2010) 51 Cal.4th 47, 54-59 [119 Cal.Rptr.3d 415,
244 P.3d 1062].)
LESSER INCLUDED OFFENSES
Predicate Offenses Not Lesser Included Offenses
The predicate offenses that establish a pattern of criminal gang activity are not
lesser included offenses of active participation in a criminal street gang. (People v.
Burnell (2005) 132 Cal.App.4th 938, 944-945 [34 Cal.Rptr.3d 40].)
RELATED ISSUES
Conspiracy
Anyone who actively participates in a criminal street gang with knowledge that its
members engage in or have engaged in a pattern of criminal gang activity, and who
willfully promotes, furthers, assists, or benefits from any felonious criminal conduct
by the members, is guilty of conspiracy to commit that felony. (Pen. Code, § 182.5;
see Pen. Code, § 182; CALCRIM No. 415, Conspiracy.)
Labor Organizations or Mutual Aid Activities
The California Street Terrorism Enforcement and Prevention Act does not apply to
labor organization activities or to employees engaged in activities for their mutual
aid and protection. (Pen. Code, § 186.23.)
Related Gang Crimes
Soliciting or recruiting others to participate in a criminal street gang, or threatening
someone to coerce them to join or prevent them from leaving a gang, are separate
crimes. (Pen. Code, § 186.26.) It is also a crime to supply a firearm to someone who
commits a specified felony while participating in a criminal street gang. (Pen. Code,
§ 186.28.)
Unanimity
The “continuous-course-of-conduct exception” applies to the “pattern of criminal
gang activity” element of Penal Code section 186.22(a). Thus the jury is not
required to unanimously agree on which two or more crimes constitute a pattern of
criminal activity. (People v. Funes,supra, 23 Cal.App.4th at pp. 1527-1528.)
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SECONDARY SOURCES
2 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Crimes Against Public Peace
and Welfare, §§ 31-46.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 144, Crimes
Against Order, § 144.03 (Matthew Bender).
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© Judicial Council of California.